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Bi-Partisan Web Privacy Bill Proposed

In Legal News on April 14, 2011 at 2:30 pm

Senators John Kerry (D) and John McCain (R) have proposed an internet privacy bill to the United States Senate that would seek to protect consumer information on the internet.  The bill is backed by the Obama administration and a similar bill has been introduced in the House of Representatives. 

The bill, if passed and enacted, would require companies like Facebook and Google to explain how they collect personal information from users, how and when they share such information, and will make it more difficult for targeting internet users by advertisers. The bill would require consumer consent before information about a user could be collected.  The Federal Trade Commission, which would be in charge of enforcing the law if the bill is passed and enacted, had sought stronger restrictions and a “do not track” mechanism similar to the do not call registry.  Though no private lawsuits would be permitted under the law, the FTC could fine companies up to $3 million for violating the law. 

Senator McCain was quoted in today’s Washington Post as stating, “Consumers want to shop, browse and share information in an environment that is respectful of their personal information. Our legislation sets forth a framework for companies to create such an environment and allows businesses to continue to market and advertise to all consumers, including potential customers.” 

While consumer advocates would prefer even stronger measures, this bill is a good start to providing much needed protection of personal information in the fast changing worlds of internet commerce and social media.


Dispute Resolution for Our Kids

In Legal News on March 31, 2011 at 3:55 pm

Last week, NPR featured a week-long story on steps the City of Chicago has taken to reduce violence among the City’s youth.  Many of the ideas the City has employed center around shaping the way young people approach conflicts and how they resolve their disputes.  Examples include “CeaseFire” – a community based group that enlists former gang members to mediate street conflicts before they become violent, mentors in the schools to teach young people how to cope and react to conflict without violence, and a “Peace Room” in one local school that meets with kids to help them resolve disputes.  The goals of the City’s plan are to create a “Culture of Calm” and to teach kids how to deal with anger and conflict without resorting to violence. 

Here in the Birmingham area, a similar program is being piloted in Bessemer.  With help from local lawyers, counselors, the Birmingham Volunteer Lawyer Program and the Alternative Dispute Resolution Section of the Birmingham Bar Association, mediators have been meeting with kids to help resolve disputes and prevent fights – and have been having success!  This program deserves wide community support and I hope it lays the foundation for similar programs in all of our area schools.  We can counter the culture of violence and build a strong foundation in our young people if we take the time to lead by example.


Judge Rebukes Ken Feinberg on Neutrality Claim

In Legal News on February 3, 2011 at 12:07 pm

The Federal Judge overseeing the BP oil spill litigation has ordered the claims administrator to stop telling claimants that he is completely neutral and independent from BP.  In an Order entered yesterday, Judge Carl J. Barbier instructed that Ken Feinberg must make it clear that he is acting on behalf of BP in resolving the claims made by Gulf Coast residents and that he is fulfilling BP’s obligations under the Oil Pollution Act.  The Judge went on to note that Mr. Feinberg’s claiming complete neutrality was a direct threat to the litigation. 

Mr. Feinberg and his law firm were hired by BP to administer the claims fund established to compensate victims of the Deepwater Horizon oil spill.  According the the AP (http://www.usatoday.com/money/companies/regulation/2011-02-02-gulf-spill-feinberg_N.htm), his law firm was paid $850,000.00 per month by BP through January of this year, and discussions about his fees going forward are underway.  Throughout his administration of the claims fund, Mr. Feinberg has held out that he is completely independent from BP.  In reality, as Judge Barbier noted, Mr. Feinberg is serving in a “hybrid” role that is not truly independent. 

Judge Barbier went on to state, “Full disclosure and transparency can ensure that the reality of the operation of a third party will be consistent with any publicity concerning that matter.  Full disclosure can also give protection to the responsible party from possible future legal attacks on the validity of the evaluation, payment, and release of claims.” 

Lawyers quoted in an article in the New York Times (http://www.nytimes.com/2011/02/03/us/03feinberg.html) regarding Judge Barbier’s Order indicated that Mr. Feinberg’s prior claims of neutrality could give rise to challenges to the settlements he has reached.  Further arguments and briefing on issues surrounding the claims process are expected. 

A copy of Judge Barbier’s Order can be found at http://graphics8.nytimes.com/packages/pdf/national/Barbier-Feinberg.pdf


Lawsuit Loan Litigation Update

In Legal News on January 25, 2011 at 11:28 am

I have previously blogged about a class action case here in Alabama against Oasis Legal Financing and their questionable-at-best lending practices.  Litigation against Oasis, and other “non-recourse” lenders has spread, and a number of states are now looking more closely at these predatory lenders. 

On January 17, 2011, the New York Times ran a front page article titled, “Lawsuit Loans Add New Risk for the Injured.”  The article, written by Binyamin Applebaum, profiled several cases where personal injury victims took out loans from Oasis and similar lenders, only to discover after the fact that the small “non-recourse” loans ate up most of their lawsuit settlements.  While the Alabama case was not discussed in this article, lawsuits from other states challenging these unscrupulous lending practices were discussed.  The lenders, in turn, have filed lawsuits seeking to prevent states from applying lending regulations to them because, in their estimation, they aren’t making a loan but instead are buying an interest in the underlying lawsuit.  Thus, under their argument, they do not fall within truth in lending requirements or interest rate caps.  The article also demonstrated the lobbying efforts being made by Oasis and its brethren to have exceptions carved out in various states so they can continue to take advantage of injured people while dodging regulatory or judicial scrutiny. 

In an interesting letter to the editor following this story, Darren McKinney, the Director of Communications for the American Tort Reform Association, stood up against Oasis and the “non-recourse” lenders.  His letter ran in the New York Times on January 22.  Mr. McKinney pointed out the historical ban on third parties investing in lawsuits, and chided legislators who were supporting these lenders.  As Mr. McKinney pointed out, not only are the injured people taken advantage of, but the practice of lawsuit lending could be seen as encouraging the filing of more lawsuits – something the American Tort Reform Association certainly opposes. 

With such a diverse group of interests opposing Oasis and its ilk, hopefully legislatures around the country will stand up and hold these lenders to the standards that apply to all other lenders.  I applaud those who are challenging the “non-recourse” lawsuit lending industry and hope the courts and legislatures will do the right thing and reign in this predatory practice.


Chantix Litigation to be Centered in Birmingham

In Legal News on January 5, 2011 at 2:25 pm

The Birmingham News has reported that the lawsuits involving Pfizer’s anti-smoking drug, Chantix, will be consolidated before U.S. District Judge Inge Johnson in Birmingham.  The drug has been linked to psychological problems in users, including causing thoughts of suicide and in some cases the committing of suicide. 

Ernest Cory, of the law firm of Cory, Watson, Crowder & DeGaris, P.C., is leading the litigation for the plaintiffs.  Over 1,200 cases have been filed against Pfizer, and Mr. Cory suggests that at least another 1,000 are likely to be filed.  Of those cases, Mr. Cory reports that 60% involve some degree of self-harm by the patient using the drug.  Pfizer, which is represented in the litigation by Tripp Haston of the Birmingham office of Bradley Arant Boult Cummings, LLP, has denied that the drug is the cause of the psychological conditions at issue in the case.  In 2008, the FDA required Pfizer to add a “black box” warning to Chantix, alerting patients of possible serious side effects from taking the drug.   

The Multidistrict Litigation (MDL) process allows for the consolidation of cases from across the United States for pre-trial purposes.  Often the Court that runs the MDL will try a handful of representative cases.  Mr. Cory suggests trials could start some time in 2012.  Mr. Haston suggests that it is premature to point towards any trial dates as the litigation is at its very earliest stages.  Depositions of Pfizer personnel are due to begin early this year. 

If you or someone you know has been injured by a defective drug and are seeking more information, please go to our “about us” page and contact The Law Offices of Brian Turner, LLC.


Apple Sued for Alleged Consumer Privacy Violations

In Legal News on December 29, 2010 at 11:38 am

Bloomberg and Reuters have reported that two class action lawsuits have been filed in California against Apple Inc., alleging that apps for their popular iPad and iPhone transmit users’ personal information without the consent of the consumers using the devices.  Google’s Android platform is also being reviewed for the way its apps transmit personal data. 

Consumer information from such popular apps as Pandora, Weather Channel, Paper Toss, and Dictionary.com is alleged to be shared from the smartphone to third-party advertisers.  Information such as the user’s age, gender, sexual preference, location, political views, income level, and other similar data is being sent to advertisers who then target the users of the apps.  The iPhone and iPad have a Unique Device Identifier (UDID) which users are unable to block.  Apple has amended its developer agreement to try to prevent apps from sending personal data.  However, the lawsuits allege that Apple has failed to implement these consumer protections. 

Smartphone users should be wary of what information they provide through the apps they download.  The cases allege claims for violation of federal computer fraud and privacy laws.  The cases are: Freeman et al., v. Apple Inc., et al., No. 5:10-cv-05881-HRL and Lalo v. Apple Inc., et al., No. 5:10-cv-05878-PSG.  Both are pending in the U.S. District Court for the Northern District of California in San Jose.


Major Food Safety Bill Passes the Senate

In Legal News on November 30, 2010 at 11:39 am

The Washington Post is reporting the passage today of a long-stalled, yet widely supported, food safety bill.  The leadership of the House of Representatives has indicated that they will accept the Senate version of the bill, despite having passed a more stringent version of the legislation over a year ago. 

Under the bill, the Food and Drug Administration will have the authority to order recall of tainted foods (currently only voluntary recalls by producers is allowed).  The bill requires FDA to regularly inspect farms and food production facilities and gives FDA access to processing plant and farm records that it has not had before.  Further, the bill gives the FDA standards, for the first time ever, to verify the safety of imported food products.  Exemptions for small farms that sell directly to consumers at farmers markets and similar points of sale were added to the bill before passage. 

The bill was widely supported by members of both parties, as well as consumer and business groups.  It is anticipated that the bill will go before President Obama before the end of the current legislative session.   

In light of major outbreaks of E. coli and salmonella over the last few years, this legislation is long overdue and a major victory for consumers. 

Cell Phone Case Could Have Major Effect on Consumer Class Actions

In Legal News on November 11, 2010 at 10:59 am

This week, the United States Supreme Court heard oral arguments in a case that could have a major effect on the options consumers have to protect their rights.  The case involves a California couple who were charged $30.00 in taxes for a “free” cell phone when they signed up for service with AT&T Mobility.  The fine print of the purchase contract included language that said any disputes under the contract were subject to arbitration and that the consumers had waived their right to file a lawsuit or to be part of a class action.  California consumer protection laws allow consumers to file class action lawsuits. 

The consumers filed their class action case, and the lower courts found that the provision of the contract attempting to take away the right to participate in a class action was unconscionable and should not be enforced.  This case raises the issue of whether the Federal Arbitration Act trumps state consumer protection laws.  Not surprisingly, civil rights and consumer groups are pitted against business groups in their support for the various interests at stake, and questioning from the Justices demonstrated that a division on the Court on the issue of state’s rights versus federal law will likely come into play in the decision the Court will render.  26 different groups filed “friend of the Court” briefs in support of the various positions in question.  This decision could be far reaching and effect the way consumer complaints are handled across the Country.  However, the Supreme Court could also decide the case on a narrow basis limited to the facts of this specific case.  A decision is expected early next year.   

The case is AT&T Mobility v. Concepcion.


Coupon “Glitch” at Target Stores

In Legal News on November 3, 2010 at 3:06 pm

Recent media reports have called attention to a problem that has been plaguing Target retail stores since summer.  Due to what Target is calling a computer “glitch,” consumers are not receiving full value for certain manufacturers’ coupons when paying for their purchases.  However, when Target redeems the coupons, the retail chain receives full face value for the coupons.  Target has been aware of the problem since at least this past August.  Yet, Target has not corrected the problem. 

The issue appears to be happening with coupons for an amount off of multiple items.  An article in the Chicago Tribune cited an example of a client with a $1.00 off coupon with the purchase of eight containers of yogurt.  When the eight containers were purchased and the coupon presented, the register was programmed in such a way to apply the discount to only one container.  Since Target, as is common with most retailers, will not apply the value of a coupon below the price of the item (making “free” the best deal you can get) the $1.00 coupon was only applied to the cost of one container of yogurt – or $0.39.  The customer was short-changed $0.61 – an amount Target would receive as a bonus when is submitted the coupon to the manufacturer and was paid the full $1.00 face value. 

While Target states that they are working diligently on the problem, there has yet to be a fix implemented.  Target suggests that consumers check their receipts carefully, and if any discrepancy is found, to take the receipt and the merchandise to the customer service counter for a refund of the difference. 

Consumers should pay extra attention when checking out at retailer stores with coupons.  The retailer is receiving full value for the coupon – they do not lose money on a coupon purchase.  Consumers need to make sure they are getting the deal they expect and that they are not short-changed for their purchases.


Updates on the BP Litigation

In Legal News on October 19, 2010 at 2:21 pm

The last several days have brought some important announcements in the BP litigation.  As reported by the AP last Friday, the judge overseeing the Multidistrict Litigation brought against BP, U.S. District Judge Carl Barbier, announced his intention to hold the first trial for damage claims as early as June of 2011.  This test case will have a very large impact on how the overall litigation moves forward.  The Court has not announced what case will be tried.  A separate trial date has been set for February of 2012 to assign percentages of fault between BP and the other companies involved in the operation of the Deepwater Horizon oil platform. 

Yesterday, BP formally notified Judge Barbier that it is waiving a $75 million cap on its liability.  In making its announcement, BP re-stated the company’s intention to pay all legitimate claims arising from the explosion of the Deepwater Horizon and the subsequent oil spill.  However, BP did couch this waiver of the damages cap with a denial of “gross negligence” in an outward attempt to avoid the possibility of being assessed with punitive damages.  Future rulings from Judge Barbier will address those issues. 

Both of these developments are important for those who have suffered as a result of the Deepwater Horizon explosion and will hopefully lead to the eventual positive resolution of these claims.

 

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